perpetuate memory, was not admissible merely because he had since become interested; for it is taken only to prevent the loss of his testimony by death. Tilley's case, 1 Salk. 286. See further as to depositions taken on bills to perpetuate testimony and examinations, de bene esse, ante, p. 108.

In Johnson v. Ward, 6 Esp. 47, where the defendant moved to put off the trial upon an affidavit made by D., wherein D. swore that he had subscribed a policy for and on account of the defendant, this affidavit was received as evidence of the agency of D. In Brickell v. Hulse, 7 Ad. & E. 454, an action of trover against the sheriff, the affidavit of one W., used by the sheriff in order to obtain an interpleader rule, in which W. swore that he was the officer of the sheriff, was received. In Gardner v. Moult, 10 Ad. & E. 464, an action by the assignees of a bankrupt, the plaintiffs, in order to prove the act of bankruptcy, were allowed to put in evidence a deposition made by one H., whom the defendant had sent to prove the act of bankruptcy at the opening of the fiat. In Pritchard v. Bagshaw, 11 C. B. 459; 20 L. J., C. P. 161, an action of trover was brought against a company, who had previously filed a bill for specific performance of a contract of sale, and upon the suit being referred to the master the company had made use before him of the affidavit of one D., in which he stated that he was the manager of the company at certain works: the affidavit was received in the action as an admission of the agency of D. In Atkins v. Humphreys, 1 M. & Rob. 523, at the trial of an issue directed by the Court of Chancery, depositions used by the defendants in a previous suit where also they were defendants, but where there was a different plaintiff, were rejected by Tindal, C. J., upon the ground of the difference in the parties. The decision in this case can hardly be reconciled with the later authorities, for when depositions are put in evidence as admissions, this identity between the parties is not necessary. The court, in the cases of Brickell v. Hulse and Gardner v. Moult, supra, appear to have been under the impression that depositions in Chancery taken under the old system (before November, 1852) could not be received as admissions, upon the supposition that the depositions were sealed up from the time of their being taken until publication had passed; but in the case of Richards v. Morgan, 4 B. & S. 641 ; 33 L. J., Q. B. 114, this error was pointed out and explained by the court. In that case depositions used by the vendee of an estate in a suit in Chancery commenced against him for the purpose of setting aside the sale, and containing statements as to the extent of the land, were received (diss. Blackburn, J.) in a subsequent action as admissions of the extent of the estate in question. So, in Fleet v. Perrins, L. R., 3 Q. B. 536, the answers to interrogatories made in a former action by one of the parties was held to be admissible as evidence against him.

In trespass q. c. f. defendant denied the possession of the plaintiff, and put in evidence the examination of A. B., then living, but abroad, who had been called by the plaintiff to prove possession in a previous summary proceeding for malicious trespass by plaintiff against defendant, but who on such examination had denied the plaintiff's possession: it was held that the deposition was admissible. Cole v. Hadley, 11 Ad. & E. 807. This unsatisfactory case is shortly reported, and the grounds of the judgment do not distinctly appear. It has been suggested that the evidence" was received as the deposition of a witness on a prior inquiry between the same parties on the same question; Boileau v. Rutlin, 2 Exch. 680, per cur.; but, even if this were the reason, a proceeding for conviction of an offence can hardly be considered as a cause between the same parties as a subsequent action of trespass; vide post, p. 195. See further R. v. Latchford, 6 Q. B. 567, and the judgment in Boileau v. Rutlin, supra.

Sentences in Ecclesiastical Courts.

191

Where the plaintiff in an action for goods sold had used an affidavit in another proceeding, erroneously alleging payment of the debt by the defendant to the plaintiff's agent, it was held that he was not estopped from suing the defendant, if the debt was not really paid. Morgan v. Couchman, 14 C. B. 100; 23 L. J., C. P. 36.

Even a voluntary deposition may be evidence as an admission of the party making it, on mere proof of signature. B. N. P. 238.

With regard to depositions taken under the Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), see sect. 136, cited post, Part III., Actions by trustees of bankrupts.

Depositions previously made before a British consul abroad, in relation. to the same subject-matter, are admissible in evidence, on proof that the witness cannot be found in the United Kingdom; 17 & 18 Vict. c. 104,

270.

Effect of Sentences in the Ecclesiastical and Divorce Courts.

A

While the Ecclesiastical Courts had the exclusive right of deciding directly upon the legality of marriage, the temporal courts received their sentences upon such questions as conclusive evidence of the fact (Bunting v. Lepingwell, 4 Rep. 29 a), upon the principle that the judgment of a court of exclusive jurisdiction, directly upon the point, is conclusive upon the same matter coming incidentally in question in another court for a different purpose, unless impeached for fraud. Kingston's (Ds. of) case, 20 How. St. Tr. 538, 540. See the cases cited arguendo, in Stockdale v. Hansard, 9 Ad. & E. 62. The jurisdiction of the Ecclesiastical Courts in these matters was transferred to the Court for Matrimonial Causes, and has been again transferred by the J. Act, 1873, s. 16, to the High Court of Justice, and assigned by sect. 34 to the Probate, Divorce, and Admiralty Division. The verdict of a jury in a divorce suit is not evidence inter alios, where there has been no decree. Needham v. Bremner, L. R., 1 C. P. 583. But where the jury have found the petitioner guilty of adultery the verdict is conclusive evidence against him in a subsequent divorce suit, brought by him against a different co-respondent. Conradi v. Conradi, L. R., 1 P. & M. 514. sentence in a suit of jactitation of marriage is evidence in an action at common law to disprove the marriage. Jones v. Bow, Carth. 225. In the lastmentioned case such sentence was held to be conclusive evidence; but on this point the authority of the decision has been overruled: for a sentence in a suit of jactitation has only a negative effect, viz., it shows that the party has failed in his proof, leaving it open to new proofs of the same marriage in the same cause, and it does not conclude even the court which pronounces it. Kingston's (Ds. of) case, 20 How. St. Tr. 543. See Blackham's case, 1 Salk. 290, and Hargr. Law Tr. 451. A sentence of nullity of marriage may be impeached by proving that it was procured by fraud and collusion. Harrison v. Southampton, Mayor of, 4 D. M. & G. 137; 22 L. J., Ch. 722. Acc. In re Birch, 17 Beav. 358. A personal answer in a suit for tithes by a former rector is admissible against his successor in support of a modus. Taylor v. Cook, 8 Price, 664. As to the effect of the sentence of consecration of ground, see R. v. Twiss, L. R., 4 Q. B. 407, 412; and Campbell v. Liverpool, Mayor of, L. R., 9 Eq. 579.

Effect of Probate and Letters of Administration.

The Ecclesiastical Courts had formerly the exclusive right of deciding directly on the validity of wills of personalty, and on the granting of admi

nistration. Noell v. Wells, 1 Lev. 235. This jurisdiction was transferred to the Court of Probate, and has, by the J. Act, 1873, s. 16, been again transferred to the High Court of Justice, and is by sect. 34 assigned to the Probate, Divorce, and Admiralty Division. See Pinney v. Hunt, 6 Ch. D. 98. A probate, therefore, granted by a competent court, is conclusive of the validity and contents of such a will and the appointment of executors till it is revoked, and no evidence can be admitted to impeach it, except in proceedings in the Probate Division for its revocation. ↑ Allen v. Dundas, 3 T. R. 125; Meluish v. Milton, 3 Ch. D. 27, C. A.; see Pinney v. Hunt, supra. On this ground the payment of money to an executor, who has obtained a probate of a forged will, is a discharge to the debtor of the intestate, though the probate be afterwards declared null. Allen v. Dundas, supra. See Hargr. Law Tracts, 459. But administration may be impeached by proof that the value required a higher stamp. See Stamps-Probate, post, p. 250. Letters of administration are not evidence of any fact which is matter of inference and not of adjudication, as the intestate's death, for the grant assumes the fact of death. Thompson v. Donaldson, 3 Esp. 63; accord. Moons v. De Bernales, 1 Russ. 301, 306. Though it could not be shown in a court of common law that the Ecclesiastical Court had erred in granting probate, yet evidence might be given to show that the court had no jurisdiction; as that the supposed intestate was alive. Allen v. Dundas, 3 T. R. 130. So the letters of administration might be proved to have been revoked. B. N. P. 247. And the books of the Prerogative Office are evidence of the revocation. R. v. Ramsbottom, 1 Leach, C. C. 25, n. So, it may be shown that the seal of the ordinary has been forged; but it cannot be shown that the will was forged, or that the testator was non compos mentis, or that another person was appointed executor; B. N. P. 247; Noell v. Wells, 1 Lev. 236; for those questions are settled by the judgment of the court.

A probate, we have seen, is not, except under special circumstances, evidence of a will of real property, ante, pp. 135, 140, 141; nor is it generally evidence that an instrument is a will so as to pass copyhold or customary estates; Hume v. Rundell, Madd. & Geld. 331; or to operate as an execution of a power to charge land. S.C. ib. We have seen, ante, p. 44, that it is not primary evidence in cases of pedigree to prove relationship.

As to the effect of probate in the case of a will of land, see the provisions of 20 & 21 Vict. c. 77, stated ante, pp. 140, 141.

The other provisions of that Act, relating to the effect of probate generally will be found post, Part III., Actions by executors.

Effect of Sentences in Admiralty Courts.

Upon questions of prize the Court of Admiralty has exclusive jurisdiction; therefore a sentence of condemnation in that court is conclusive, and being a proceeding in rem, it binds all the world. Kinnersley v. Chase, Park Ins. 8th ed. 743. The jurisdiction of the Court of Admiralty has been transferred by the J. Act, 1873, s. 16, to the High Court of Justice, and is assigned by sect. 34 to the Probate, Divorce, and Admiralty Division. And the sentence of a foreign Court of Admiralty is also, by the comity of nations, held to be conclusive upon the same question arising in this country. Hughes v. Cornelius, 2 Show. 232; Bolton v. Gladstone, 5 East, 155. But the sentence of a Court of Admiralty, sitting in contravention of he law of nations, will not be recognised in our courts. Havelock v. Rockwood, 8 T. R. 268. If the property is condemned on the ground of its not being neutral, the sentence is conclusive evidence of that fact.

Judgments of Inferior Courts.

193

Barzillay v. Lewis, Park Ins. 8th ed. 725. So, where no special ground is stated, but the ship is condemned generally as good and lawful prize, it is to be presumed that the sentence proceeded on the ground of property belonging to an enemy, and the sentence will be conclusive evidence of that fact. Saloucci v. Woodmass, Park Ins. 8th ed. 727; S. C., 3 Doug. 345. But where there is some ambiguity in the sentence of a foreign Court of Admiralty, so that the precise ground of the determination cannot be collected, the courts here may examine the ground on which it proceeded. Bernardi v. Motteux, 2 Doug. 574; Lothian v. Henderson, 3 B. & P. 499. And if the condemnation does not plainly proceed upon the ground of enemies' property, or of non-compliance with subsisting treaties, but on the ground of regulations arbitrarily imposed by the captor, to which neither the government of the captured ship nor the other powers of Europe have been made parties, such a condemnation will not be admitted as conclusive of a breach of neutrality. Pollard v. Bell, 8 T. R. 444, and cases collected in Park Ins. 8th ed., 730, et seq. In order to conclude the parties from contesting the ground of condemnation, such ground must appear clearly upon the face of the sentence; it must not be collected by inference only, or left in uncertainty whether the ship was condemned upon one ground which would be a just one by the laws of nations, or upon another ground which would amount only to a breach of the municipal regulations of the condemning country. Per Tindall, C. J., Dalgleish v. Hodgson, 7 Bing. 504; Hobbs v. Henning, 18 C. B., N. S. 791; 34 L. J., C. P. 117.

Proceedings in rem in the Admiralty Court, in a collision cause, followed by an order for the sale of the ship and payment of the amount to the plaintiffs are no bar to an action of damages against the owners personally, if the proceeds of the sale are less than the damage sustained by the collision. Nelson v. Couch, 15 C. B., N. S. 99; 33 L. J., C. P. 46; and see The Sylph, L. R., 2 Adm. 24.

Effect of Judgments of Inferior Courts.

It would seem, upon principle, that the final judgment of a competent inferior court, whether of record or not, acting within its jurisdiction, will be conclusive between the same parties upon the same subject-matter where properly relied on. Moses v. Macferlan, 2 Burr. 1009; Galbraith v. Neville, 1 Doug. 6, n.; Routledge v. Hislop, 2 E. & E. 549; 29 L. J., M. C. 90 ; Flitters v. Allfrey, infra. And see the observations in 1 Stark. Ev., 2nd ed., 228. So it has been held that a certificate from commissioners under an Act for settling the debts of the Army, stating the sum due from the defendant to the plaintiff, is conclusive in an action brought to recover the money. Moody v. Thurston, 1 Stra. 481; see Att.-Gen. v. Davison, M'Cl. & Y. 160. The judgment in a County Court action is conclusive as to any facts decided thereby; the judgment will appear by the record, but from the form of proceedings it is necessary to explain by parol what points were raised in the County Court and decided by the judgment. Flitters v. Allfrey, L. R. 10 C. P. 29.

A County Court order under 19 & 20 Vict. c. 108, ss. 50, 51, for giving up possession of premises made against a person holding under the tenant and complied with by him, is not conclusive evidence of title in a subsequent action against such person for mesne profits. Campbell v. Loader, 3 H. & C. 520; 34 L. J., Ex. 50. And such order would seem not to be conclusive against him even as to the right to possession; Hodson v. Walker, L. R. 7 Ex. 55; in which case it was held (diss. Martin, B.), that

the order did not affect the rights of a person not a party to the proceedings.

In order to be a bar, the proceedings in a court of limited jurisdiction must show on the face of them, expressly or by necessary intendment, that the court had jurisdiction in the matter. Taylor v. Clemson, 2 Q. B. 978, 1031; 11 Cl. & Fin. 610; Cox v. London, Mayor of, L. R. 2 H. L. 239. So also the judgment of an inferior court of local jurisdiction may be avoided by proof that the cause of action did not arise within its jurisdiction; Herbert v. Cook, 3 Doug. 101; S. C. Willes, 36 n.; Briscoe v. Stephens, 2 Bing. 213; or that defendant, the debtor against whom the inferior court awarded process, did not reside within the district; Carratt v. Morley, 1 Q. B. 18; it not appearing that any proof of residence had been, in fact, given to the court below. See also Huxham v. Smith, 2 Camp. 19. The above cases related to district courts having no statutable or other power, except over causes arising within the territorial limits. Where the court is limited only as to certain persons or causes, and not as to locality; or where the jurisdiction of the court, though established for a limited district, can lawfully exercise powers out of it; or where the practice of the inferior court requires, and is warranted by law in requiring, that the defect of jurisdiction should be pointed out by plea or otherwise, and the defendant has waived the objection;-in such cases it would seem that the inquiry will be, not simply where the cause of action arose, or where the parties reside, but whether the court had jurisdiction. As to the jurisdiction of the Mayor's Court, London, see Cox v. London, Mayor of, supra: L. Joint Stock Bank v. Id., 1 C. P. D. 1; 5 C. P. D. 494, C. A. ; 6 Ap. Ca. 393, D. P.; and Cooke v. Gill, L. R., 8 C. P. 107.

It has been that a judgment of the old County Court is examinable, and the existence of the facts necessary to the regularity of such judgment is a question for the jury, although a motion made in the County Court to set aside the proceedings for irregularity had been dismissed. Thompson v. Blackhurst, 1 N. & M. 266. But in such case there must be a proper defence to let in the inquiry. Williams v. Jones, 13 M. & W. 628. Where trespass was brought for executing a warrant to levy a poor-rate, the plaintiff' was not permitted to impugn the appointment of the overseers on the ground of irregularity or miscalculation of votes at the meeting of justices at which the appointment was made; the jury having expressly negatived fraud. Penney v. Slade, 5 N. C. 319.

Where a cause was removed by habeas from an inferior court after a judgment by default, that judgment was not evidence against the defendant in the superior court. Bottings v. Firby, 9 B. & C. 762.

Effect of Convictions.

It is a general rule that the judgments of all courts of competent judicature are conclusive for the purpose of protecting their judicial officers acting within the scope of their authority. Thus, where the justices of the peace have an authority given to them by Act of Parliament, and they appear to have acted within the jurisdiction so given, and to have done all that they are required by the Act to do in order to originate their jurisdiction, a conviction drawn up in due form, and remaining in force, is a protection in any action brought against them for the act so done. Per Abbott, C. J., Basten v. Carew, 3 B. & C. 653. Therefore where, in trespass against two magistrates for giving the plaintiff's landlord possession of a farm as deserted, the defendants produced in evidence a record of their